A. The Statutory FrameworkB. The Reach Of The CDA: Plaintiffs And
Their SpeechC. The Nature Of The InternetD. How Communication
Takes Place On The InternetE. The Inadequacy Of The Statutory DefensesF.
The Ineffectiveness Of The CDA And The Availability Of Less Restrictive
AlternativesG. The Decision Below

The government appeals from a preliminary injunction barring the enforcement
of the Communications Decency Act of 1996 (CDA),1
which imposes criminal penalties on constitutionally protected speech occurring
on the Internet. The Internet has no parallel in the history of human
communication. It provides millions of people around the globe with a low-cost
method of conversing, publishing, and exchanging information on a vast array of
subjects with a worldwide and virtually limitless audience.

It also provides a foundation for new forms of community -- communities
based not on any accident of geographic proximity, but on bonds of common
interest, belief, culture or temperament.

As Congress itself recognized, "[t]he Internet . . . offer[s] a forum
for a true diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity."2 The CDA jeopardizes each of these goals. Unless
enjoined, it will reduce this "never-ending, worldwide conversation"
to a level deemed suitable for children. Appendix to the Jurisdictional
Statement 146a (J.S. App.).

Specifically, the CDA makes it a crime, punishable by up to two years in
prison, for anyone to use online computer communications to transmit or "display
in a manner available to minors" any material that is "indecent"
or "patently offensive." Because there is no way for the vast majority
of Internet speakers to distinguish between adults and minors in their audience,
the CDA is the most restrictive censorship scheme imposed on any medium. For
that reason, among many others, the government has yet to convince even a single
federal judge that the statute, as written, can be sustained.

STATEMENT OF THE CASE

This appeal arises from two consolidated cases challenging the
constitutionality of the CDA. A three-judge district court heard five days of
testimony on plaintiffs' motions for a preliminary injunction, including an
online demonstration of all of the methods of communicating on the Internet.3 The court also considered numerous affidavits and
extensive documentary evidence submitted by both sides. The decision to grant a
preliminary injunction was unanimous. All three judges agreed that the statute
violated the First Amendment. Two members of the panel also concluded that the
critical provisions of the CDA were unconstitutionally vague.4

The preliminary injunction decision in this case is supported by 409
separate factual findings. The overwhelming majority of the findings (334) were
derived from a joint stipulation submitted by the parties.5
Those findings, which are not disputed by the government, comprehensively
describe the plaintiffs, their speech, the nature of the Internet as a
communications medium, the inadequacy of the statutory defenses relied on so
heavily by the government, the ineffectiveness of the CDA in accomplishing its
asserted goals, and the availability of less restrictive alternatives that
enable parents (rather than the government) to decide what material their
children should see.

A. The Statutory Framework

The criminal provisions challenged in this action are embodied in two
sections of the CDA. Section 223(a)(1)(B) applies to "telecommunications
device[s]." J.S. App. 6a-7a n.5. Under §223(a)(1)(B), it is a felony
to transmit an "indecent" communication "knowing that the
recipient of the communication is under 18 years of age." The term "indecent"
is undefined in the statute.6

Section 223(d)(1) applies to "interactive computer services." It
criminalizes communications to minors that, "in context, depict[] or
describe[], in terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs."7
Section 223(d)(1)(A) makes it a crime to "use[] an interactive computer
service to send [such material] to a specific person or persons under 18 years
of age."8 Section 223(d)(1)(B) makes it a
crime to "display [such material] in a manner available" to any person
under eighteen.9

Until reaching this Court, the government made very little effort to
distinguish among these provisions or to defend their constitutionality,
standing alone. Rather, throughout the district court proceedings, the
government's case primarily relied on the defenses set forth in §223(e)(5).
Section 223(e)(5)(A) creates an affirmative defense for anyone who "has
taken, in good faith, reasonable, effective, and appropriate actions under the
circumstances to restrict or prevent access by minors to [prohibited]
communication[s] . . . ." Section 223(e)(5)(B) creates an affirmative
defense for anyone who "has restricted access to such communication by
requiring use of a verified credit card, debit account, adult access code, or
adult personal identification number."

B. The Reach Of The CDA: Plaintiffs And Their Speech

The plaintiffs in these consolidated cases illustrate the spectrum of
individuals and organizations who use online computer networks to communicate,
send, display and access information, including information that could be
considered "indecent" or "patently offensive."10 Plaintiffs include nonprofit public interest
organizations, such as the American Civil Liberties Union (ACLU), the American
Library Association (ALA), Planned Parenthood Federation of America (PPFA),
Human Rights Watch (HRW), the Electronic Privacy Information Center (EPIC), and
the Electronic Frontier Foundation (EFF), as well as for-profit corporations
such as Wildcat Press, BiblioBytes, and Prodigy.

Individual plaintiffs include Kiyoshi Kuromiya, who runs the Critical Path
AIDS site on the World Wide Web, and Declan McCullagh, who alone operates the
Justice On Campus Web site and a popular online discussion list on censorship
issues. M.A. 23a-26a, ¶¶176-188; id. at 27a-28a, ¶¶194-97.
Corporate speakers and trade groups include Microsoft, the American Booksellers
Association, and the National Writers Union. Some plaintiffs provide material
that is accessed by large numbers of people each day, M.A. 1a-5a, ¶¶70-84;
id. at 23a-26a, ¶¶176-88, while others simply send an
occasional e-mail to relatives or friends, id. at 14a, ¶131. Some
plaintiffs also provide access to the Internet in addition to being speakers and
users of online information. See id. at 16a-17a, ¶¶140-44;
23a-26a, ¶¶176-88.

The plaintiffs do not speak with a single voice or on a single issue.
However, all plaintiffs engage in speech that may be regarded as "indecent"
by some communities across this country, notwithstanding its social value.11 As set forth in the record, that speech includes the
following:

Speech about AIDS, safer sex practices, and prisoner rape:
Plaintiffs include several individuals and organizations who engage in frank
speech about sexual practices. Critical Path is typical. See generally
J.A. 136-49. Both directly and through access to other sites, Critical Path
provides an extensive online library concerning the transmission and treatment
of AIDS.12 The Critical Path Web site is
accessed as often as 10,000 times per day by people all over the world. Id.
at 138, ¶12. By definition, the information it provides deals with sexual
activity, which is frequently described in colloquial terms that can be
generally understood by its intended audience.

The importance of this information was summarized by Kiyoshi Kuromiya, who
testified: "In my view, the information that Critical Path provides saves
lives of both teenagers and adults and any attempt to censor or restrict the
free flow of this life-saving information would be a critical public health
mistake." Kuromiya Test. Decl. at 35, ¶13, ¶15, ¶16; see
also M.A. 23a-36a, ¶¶176-188. Other plaintiffs also provide
explicit information about safer sex. For example, the Safer Sex Web Page
includes a photograph that illustrates the proper method of putting on a condom.
See Pl.Exh. 50. They also host an online discussion group that allows
individuals to discuss issues, such as how to talk about safer sex with a
partner. See M.A. 29a-31a, ¶¶203-214; see also id. at
18a-21a, ¶¶155, 161; 32a-33a, ¶¶221-28.

Plaintiff Stop Prisoner Rape (SPR), a nonprofit organization dedicated to
combatting the rape of prisoners and providing assistance to survivors, has a
Web site that contains a variety of documents about prisoner rape that use raw,
street language to discuss violence, sex and certain excretory functions used to
humiliate victims. The site publishes testimonial letters from survivors that
describe their brutal victimization and the psychological as well as physical
devastation they experienced; these letters educate the public by conveying the
horrible realities of prisoner rape in ways that statistics could never do. SPR
also provides a forum for survivors to talk openly about their anger and fears,
receive important survival tips, and dispel uneducated myths about the subject.
See Donaldson Test. Decl.; M.A. 17a-19a, ¶¶145-154.

Speech about gay and lesbian issues: Plaintiffs also include
individuals and organizations who engage in speech of particular interest to gay
men and lesbians. For example, Wildcat Press, a publisher of gay and lesbian
literature, sponsors two electronic magazines (e-zines) on the World Wide Web
that are written by and for gay and lesbian youth. Patricia Nell Warren
testified that the YouthArts e-zines "provide a creative forum for many
youth to discuss their coming out, their experiences with gay life and their
sense of their own identity . . . . Many of the contributors openly discuss sex
and sexuality, often using slang common to their age group." Warren Test.
Decl. at 9, ¶¶21, 23; see also M.A. 26a-27a, ¶¶189-193.
See id. at 22a-23a, ¶¶168-175. Plaintiff National Writers
Union hosts an online mailing list called "NWU-queer" for writers who
are gay, lesbian, or bi-sexual. See id. at 14, ¶131.

Speech about censorship and human rights: Several of the plaintiffs
engage in speech concerning censorship. For example, the ACLU posts online
information that includes the text of the famous "Seven Dirty Words"
comic monologue that was declared "indecent" in FCC v. Pacifica,
438 U.S. 726 (1978). In addition, the ACLU hosts online discussions on a
variety of civil liberties topics, ranging from efforts to censor Howard Stern's
best-selling book, "Private Parts," to a discussion of masturbation as
part of a larger debate over the firing of former Surgeon General Jocelyn
Elders. See M.A. 3a-4a, ¶¶78-80.

Human Rights Watch, a nongovernmental organization that monitors and
promotes the observance of international human rights, posts some of its reports
on their Internet site. Those reports can include graphic language about
prostitution, rape, and torture involving sexual mutilation. See id. at
5a-6a, ¶¶85-92. Plaintiffs EPIC, EFF, Justice on Campus and Cyberwire
Dispatch use the World Wide Web and online discussion groups to communicate
about censorship; among other things, they often provide excerpts of censored
material. See id. at 6a-10a, ¶¶1893-106; 27a-29a, ¶¶194-202.

Controversial speech: Plaintiffs also include authors, publishers,
and teachers who use the Internet to write or provide access to fiction and
nonfiction that often uses strong language and addresses controversial issues.
These plaintiffs include the Ethical Spectacle, an online newsletter that has
discussed Nazi experimentation and the morality of pornography; BiblioBytes, an
online bookseller with over one thousand titles including romance novels,
erotica, classics, and horror; ClariNet and Cyberwire Dispatch, who publish news
articles that sometimes uses vulgar and graphic language; and the Journalism
Education Association, a national organization of high school teachers that
assists minors with online research on many subjects, including teenage
sexuality, abortion, art and literature. See id. at 31a, ¶¶215-20;
15a-16a, ¶¶135-39; 21a-22a, ¶¶162-67; 28a-29a, ¶¶198-202;
10a-11a, ¶¶107-13.

Of course, the reach of the CDA extends far beyond the actual plaintiffs in
this case. The government's own witnesses testified that the magazine Vanity
Fair, with a nude cover photo of the actress Demi Moore, would be
potentially indecent in some communities, J.A. 118-19, as would a political
discussion that included the sentiment "Fuck the CDA," Olsen
testimony, Tr. Vol. V, at 53-53. See also J.S. App. 99a (Buckwalter,
J.); id. at 119a (Dalzell, J.). The trial court also found that
artworks such as nudes by Edward Weston, material from contemporary films such
as "Leaving Las Vegas," and reproductions of ancient Indian
sculptures, are all within the CDA's broad proscriptions. See id. at
42a-47a, ¶¶74-75, 78, 85; 71a; 76a-77a.

C. The Nature Of The Internet

The Internet is a "unique and wholly new medium of worldwide human
communication." Id. at 46a, ¶81. Simply described, it is a
giant, global communications network that connects innumerable smaller computer
networks. Id. at 12a, ¶1. While difficult to estimate due to
rapid growth, the Internet is believed to connect over 9,400,000 host computers
worldwide and as many as 40 million people. Id. at 13a, ¶3. Only
about 60% of the Internet's host computers are currently located in the United
States, and the percentage of foreign sites is growing. Id. The medium
allows "literally tens of millions of people . . . to exchange information.
These communications can occur almost instantaneously, and can be directed
either to specific individuals, to a broader group of people interested in a
particular subject, or to the world as a whole." Id. at 13a-14a, ¶4.
In the words of the trial court, "[i]t is no exaggeration to conclude that
the content on the Internet is as diverse as human thought." Id. at
43a, ¶74. In addition to its vast online libraries, the Internet hosts
conversations and even "'virtual communities' that simulate social
interaction." Id.; see also Rheingold Test. Decl. at 2-3, ¶¶5-6
("[V]irtual communities enable people to form associations that can enrich
their lives and often carry over into face to face society").

As the trial court found, the evidence below "showed significant
differences between Internet communications and communications received by radio
or television." J.S. App. 49a, ¶89. Communications on the Internet
do not "`invade' an individual's home or appear on one's computer screen
unbidden." Id. at 49a ,¶88. Rather, the receipt of
information on the Internet "requires a series of affirmative steps more
deliberate and directed than merely turning a dial." Id. at ¶89.
In addition, because the Internet is interactive, individuals can talk back,
opposing speech they find disagreeable with more speech. The court also found
that "[t]he start-up and operating costs entailed by communication on the
Internet are significantly lower than those associated with use of other forms
of mass communication," permitting its use by individuals as well as large
corporations. Id. at 44a, ¶76. The Internet is thus distinct
because it is "not exclusively, or even primarily, a means of commercial
communication." Id. at 43a, ¶75.

Search engines, which help computer users find information on the Internet,
can on occasion "accidentally retrieve material of a sexual nature through
an imprecise search." Id. at 49a, ¶88. However, the district
court found many factors that decreased the likelihood of such an "accident":

A document's title or a description of the document will usually appear
before the document itself . . . and in many cases the user will receive
detailed information about a site's content before he or she need take the step
to access the document. Almost all sexually explicit images are preceded by
warnings as to the content. Even the Government's witness, Agent Howard
Schmidt, Director of the Air Force Office of Special Investigations, testified
that the "odds are slim" that a user would come across a
sexually explicit site by accident.

There are a variety of ways in which users can communicate in cyberspace.
See generally id. at 21a-25a, ¶¶22-32. Electronic mail
(e-mail) allows an online user to address and transmit a message to one or more
people, "comparable in principle to sending a first class letter."
Id. at 21a, ¶23. In addition, there are a wide variety of online
discussion forums that allow groups of users to discuss and debate subjects of
interest. The three most common methods for online discussion are mail
exploders, USENET newsgroups, and chat rooms.

Mail exploders, also called listservs, allow online users to subscribe to
automated mailing lists that discuss particular subjects of interest.
Subscribers send an e-mail message to the "list," and the mail
exploder automatically and simultaneously sends the message to all of the other
subscribers on the list; subscribers can reply to the message by sending a
response to the list. Id. at 22a, ¶24. Users of mailing lists can
typically add or remove their names from the list automatically, with no direct
human involvement. Id.

USENET newsgroups are huge databases of messages arranged according to
subject matter, and online users may read or send a message to any newsgroup at
any time without a prior "subscription." Id. at 22a-23a, ¶25.
"USENET newsgroups . . . are among the most popular and widespread
applications of Internet services, and cover all imaginable topics of interest
to users." Id. There are newsgroups on more than 15,000 different
subjects; "[c]ollectively, almost 100,000 new messages (or `articles') are
posted to newsgroups each day." Id. at 24a, ¶26.

In addition, chat rooms, or "Internet Relay Chats," allow "individuals
on the Internet [to] . . . engage in an immediate dialog, in `real time,' with
other people on the Internet . . . . IRC is analogous to a telephone party line,
using a computer and keyboard rather than a telephone." Id. at
24a, ¶27. There are thousands of different chat rooms available, "in
which collectively tens of thousands of users are engaging in conversations on a
huge range of subjects." Id.

Finally, one of the most well-known methods for communicating information
online is the "World Wide Web," which allows users to publish (or "post")
documents, or "Web pages," that can then be accessed by any other user
in the world. See generally id. at 25a-32a, ¶¶33-48. Most
Web documents contain "links," which are "short sections of text
or image which refer to another document." Id. at 27a, ¶36.
When selected by the user, the "linked" document is automatically
displayed, wherever in the world it is actually stored. Id. "These
links from one computer to another, from one document to another across the
Internet, are what unify the Web into a single body of knowledge, and what makes
the Web unique." Id. at 28a, ¶39. Ease of access, the court
found, has been the key to the tremendous success of the Web. Id. at
32a, ¶8.

E. The Inadequacy Of The Statutory Defenses

Because the government essentially conceded that the CDA would be
unconstitutional in the absence of the statutory defenses,14
there was extensive evidence below on whether those defenses -- credit card
verification, adult verification, or "good faith, reasonable, effective,
and appropriate actions . . . to restrict or prevent access by minors to
[prohibited] communications" -- were actually available to speakers on the
Internet. It concluded they were not.

Thus, the district court found that none of the defenses were
available at all to online speakers who communicate, debate and exchange
information by e-mail, mail exploders, USENET newsgroups, and chat rooms. J.S.
App. 49a, ¶90 ("There is no effective way to determine the identity or
the age of a user who is accessing material through e-mail, mail exploders,
newsgroups, or chat rooms"); see also Shea, 930 F.Supp. at 941 ("[A]s
the government concedes, for the vast majority of applications and services
available on the Internet, a user has no way of communicating . . . with
certainty that the content will not reach a person under eighteen").

Specifically, the district court found that "[t]here is no reliable way
in many instances for a sender to know if the e-mail recipient is an adult or a
minor." J.S. App. 50a, ¶90. "The difficulty of e-mail age
verification is compounded for mail exploders . . . which automatically send
information to all e-mail addresses on a sender's list." Id. The
government's expert agreed that no current technology could "give a speaker
assurance that only adults" were subscribed to the list. Id.

Similarly, the defenses do not work for USENET newsgroups. Id. at
50a, ¶91. Newsgroups are "disseminated using ad hoc, peer to peer
connections between approximately 200,000 computers . . . around the world,"
id. at 23a, ¶25, and the "dissemination of messages . . . is
an automated process that does not require direct human intervention or review,"
id. at 23a-24a, ¶25. Likewise, speakers who communicate in real
time through chat rooms "cannot ensure that all readers are adults."
Id. at 50a, ¶90. Moreover, it is not technologically possible for
speakers in e-mail, mail exploders, newsgroups, or chat rooms to "segregate"
their speech in a way that would prevent its availability to persons under 18.
Id. at 50a, ¶92.

A different set of problems exists with the World Wide Web. As the district
court found, the statutory defenses are not available at all for the
large number of speakers who post content on the Web created through the
commercial online services such as America Online (AOL), CompuServe and Prodigy.
Id. at 51a, ¶96. The statutory defenses are meaningless to these
Web sites because there is no way at present for them to determine the age of
someone visiting the site. Other speakers on the Web can, in theory, use
special technology to interrogate users through a fill-in-the-blank form.
However, the mandatory use of this technology to request credit cards or age
verification would pose an insurmountable economic burden for many Web sites.

First, credit card companies will not verify a credit card number unless the
request is tied to a commercial transaction. Credit card verification is thus
entirely unavailable to Web sites that do not charge for access, including many
operated by plaintiffs in this case. Id. at 53a, ¶98. Second,
credit card companies charge for verification. Even if they were willing to
provide credit card verification without an underlying transaction, the cost
would be prohibitive for many Web sites. Id. at 53a-54a, ¶¶99-100.

The court was also unconvinced by the government's argument that content
providers on the Web could request adult verification through other means. The
court found that the government had offered only "very limited evidence
regarding the operation of existing age verification systems, and the evidence
offered was not based on personal knowledge." Id. at 55a, ¶103.
The government's own witness admitted that "his knowledge of these
services was derived primarily from reading the advertisements on their Web
pages . . . and [he] could not testify to the reliability of their attempt at
age verification." Id. at ¶103; see also J.A. 114-16
(Testimony of Howard Schmidt); id. at 120-25, 128-33 (Testimony of Dan
Olsen). Further, there was evidence that existing adult verification systems,
to the extent they are used at all, are used "for accessing commercial
pornographic sites [which] charge users for their services." J.S. App.
55a; see also J.A. 130-32.

The trial court also considered whether speakers could take any other action
that might constitute a "good faith, reasonable, and effective way" to
keep "indecent" materials from minors; the court found that there were
no such actions available to speakers. The government had suggested two options
that do not now exist but that might be implemented in the future. First, the
government suggested that all Internet speakers, or at least a subset of Web
speakers, could work together to set up an age verification system. But, as the
district court found, "the administrative burden of creating and
maintaining a screening system and the ongoing costs involved is beyond the[]
reach" of many noncommercial organizations, and prohibitive even for
commercial entities. J.S. App. 55a, ¶105. Furthermore, "the
government presented no testimony as to how such systems could ensure that the
user of the password or credit card is in fact over 18." Id. at
56a, ¶107.

Second, the government proposed a "tagging" system in which
speakers would label their speech "indecent." Id. at 56a-58a,
¶¶108-116. This, too, was rejected by the district court, which found
that tagging alone is totally ineffective, id. at 58a, ¶114 and can
never be effective without the cooperation of "third parties to block the
material on which the tags are embedded" -- parties who are not subject to
criminal prosecution under the CDA. Id. at 79a. In addition, tags
alone would still fail to resolve the technological impossibility of most
speakers to send their tagged speech only to adults and not to minors. Id.
at 58a, ¶116. Because the CDA is a criminal statute, the district court
also dismissed as speculative the government's suggestion that a "consensus
among speakers" might soon emerge "to use the same tag to label
`indecent' material," and that the industry might (at some future point)
develop computer software "that recognizes the tags and takes appropriate
action when it notes tagged speech." Id. at 57a-58a, ¶¶113-14.15

The trial court found that mandatory age verification also placed
unwarranted noneconomic burdens on speech over the Internet. For example, the
court found that "[v]erification of a credit card over the Internet is not
now technically possible." Id. at 53a. Currently, the volunteer
who runs the Critical Path AIDS Project does not have to be online at all while
persons around the world instantaneously access the site thousands of times in a
twenty-four hour period. To obtain advance credit card authorization before any
user could access the site would require the volunteer to supervise the site
around the clock and to delay access to each of the thousands of users until he
could go off-line to verify the card. As the trial court found, that process "would
significantly delay the retrieval of information on the Internet," id.
at 54a, ¶101, thus damaging the ease of access that is one of the principal
virtues of the medium. The government's expert agreed that even "a minute
is [an] absolutely unreasonable [delay]." Id. In addition, the
court found that some Web users would be discouraged from retrieving information
if an adult ID or credit card were required. Id. at 55a-56a, ¶106.
Finally, there was evidence that mandatory age verification would prohibit
anonymous access to sensitive material on the Internet. J.A. 143, ¶23.

F. The Ineffectiveness Of The CDA And The Availability Of Less
Restrictive Alternatives

It is undisputed that a "large percentage, perhaps 40% or more" of
Internet content "originates outside of the United States," and that
at least some of this content is sexually oriented. J.S. App. 59a, ¶117;
see also Hoffman Testimony, Tr. Vol. II, at 68-69 (the number of
foreign-based sites is growing and will soon reach 50%). It is also undisputed
that "[f]oreign content is otherwise indistinguishable from domestic
content . . . since foreign speech is created, named, and posted in the same
manner as domestic speech." Id. Thus, despite the CDA, minors
will continue to have access to all of the "indecent" material posted
outside the United States as easily and as cheaply as domestic sites.
Furthermore, "indecent" information that is now posted domestically
can be readily moved off-shore. Id. at 145a n.22 (Dalzell, J.).

Finally, the trial court issued extensive factual findings concerning the
variety of voluntary measures available to restrict minors' access to online
communications that their parents may consider unsuitable for them. Id.
at 32a-42a, ¶¶49-73. Twenty-one paragraphs of these findings were
based on stipulations by the parties, see id. at 32a n.12, which
identified many different and currently available user-based features that
enable parents to block certain online content, id. at 35a-41a.

First, the trial court reviewed user-based software products such as
SurfWatch and Cyber Patrol, and found that "[t]he market for this type of
software is growing, and there is increasing competition among software
providers to provide products." Id. at 35a, ¶54. Unlike the
CDA, these software programs are effective at controlling sexually oriented
material originating from foreign sites. See J.A. 104-07, ¶41.

Second, the trial court considered parental control options offered by the
large commercial online services such as AOL, Microsoft Network and Prodigy,
free of charge to their members. J.S. App. 41a, ¶69. For example, AOL
offers a "`Kids Only' parental control feature [that] allows parents to
establish an AOL account for their children that accesses only the Kids Only
channel on America Online." Id. at 41a-42a, ¶69. In
addition, CompuServe and Prodigy give their subscribers the option of blocking
access to bulletin boards and chat rooms within their networks. Id. at
42a, ¶71.

G. The Decision Below

Based on these extensive and largely undisputed findings, Chief Judge
Sloviter concluded that "the CDA is not narrowly tailored, and the
government's attempt to defend it on that ground must fail." Id.
at 81a. Judge Buckwalter stressed that "individuals attempting to comply
with the statute . . . have no clear indication of what actions will ensure that
they will be insulated from criminal sanctions under the CDA." Id.
at 100a. And Judge Dalzell described the Internet as "the most
participatory marketplace of mass speech that this country -- and indeed the
world -- has yet seen." Id. at 141a. Because the CDA "would
necessarily reduce the speech available for adults on the medium," Judge
Dalzell added, it is "constitutionally intolerable." Id. at
144a. All three judges agreed that the CDA should be preliminarily enjoined.

SUMMARY OF ARGUMENT

This Court has consistently held that the government may not criminalize
constitutionally protected speech for adults in the guise of protecting
children. Yet, that is precisely what the CDA does. As the lower court found,
the vast majority of Internet users can only comply with the CDA by
self-censoring their speech to a level deemed acceptable for minors. If
speakers choose not to, or guess wrong, they face a substantial prison sentence.

The government correctly conceded in the lower courts that the CDA must be
subject to strict scrutiny because it is content-based. The government's
efforts in this Court to disavow the strict scrutiny test are unpersuasive. In
particular, criminal regulation of the Internet cannot be analogized to
administrative regulation of broadcast, especially since none of the rationales
that support regulation of broadcast apply to the Internet. To the contrary, "[t]he
Internet is a far more speech-enhancing medium than print, the village green, or
the mails," as Judge Dalzell observed below. J.S. App. 144a. As Judge
Dalzell further observed, "a Newspaper Decency Act passed because Congress
discovered that young girls had read a front page article in The New York Times
on female genital mutilation in Africa, would be [clearly] unconstitutional."
Id.

The CDA clearly fails strict scrutiny because it is not narrowly tailored.
The trial court correctly found as a matter of fact that the statutory defenses
were completely unavailable to the vast majority of speakers, and economically
prohibitive for other speakers. In addition, the CDA is ineffective at
achieving the government's goal because it will not prevent minors from
accessing the "indecent" material posted outside the United States.
The CDA is also significantly more restrictive than readily available user-based
blocking software and other alternatives that enable parents to decide what
their children will read and see.

The CDA is also both overbroad and vague. The record in this case
establishes that a vast range of valuable speech has been placed in jeopardy by
the CDA. In addition, the government has been unable to define with clarity
what the statute means and what it covers. Indeed, the sponsors of the CDA
endorse for the first time in an amicus brief an interpretation of the
statute different than the one they proposed in Congress and different than the
one asserted by the government throughout this litigation. Plaintiffs are left
to speak at their own peril; prosecutors are unconstrained by any meaningful
guidelines.

Finally, the government's eleventh-hour effort to salvage two sections of
the CDA by narrowing their focus should be rejected. The argument is based on
interpretations of the statute that were not proffered below, that are
inconsistent with the plain meaning of the statute when taken as a whole, that
contribute to the CDA's vagueness, and that fail to cure its fatal overbreadth.

The decision below rests on the critical finding that the vast majority of
Internet speakers cannot distinguish between minors and adults in their
audience. As a result, they cannot comply with the CDA unless they speak only
in language suitable for children. The CDA therefore operates as a criminal ban
on constitutionally protected speech among adults.

Just last Term, this Court cited the long-standing First Amendment rule that
prevents the government from "reduc[ing] the adult population . . . to . .
. only what is fit for children." Denver Area Educational Television
Consortium v. FCC, 518 U.S. __, 116 S.Ct. 2374, 2393 (1996)(citations
omitted)(Denver Area). Even under the guise of protecting children, the
government may not justify the complete suppression of constitutionally
protected speech because to do so would "burn up the house to roast the
pig." See Butler v. Michigan, 352 U.S. 380, 383
(1957)(invalidating a conviction for distribution of indecent publications).
Similarly, in Sable Communications v. FCC, the Court struck down a total
ban on indecency in phone communications because it had the "effect of
limiting the content of adult [communications] to that which is suitable for
children." 492 U.S. 115, 131 (1989). Indeed, because "[t]he level of
discourse reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox," this Court has never upheld a criminal
ban on indecent speech. Bolger v. Youngs Drug Products Corp., 463 U.S.
60, 74 (1983)(striking down a ban on mail advertisements for contraceptives).
Applying this well-established law to the trial court's findings yields the
inescapable conclusion that the CDA is flatly unconstitutional.

B. The CDA Must Be Subject to Strict Scrutiny

If the CDA is not per se unconstitutional as a flat ban under Butler,
it is certainly subject to strict scrutiny as a content-based restriction on
speech. Indeed, the government conceded as much throughout this litigation
until its last brief.16 Perhaps abandoning that
view, the government now makes reference to five different standards, refusing
to choose among them. The government's new position is both confused and wrong.

"Indecency" (unlike obscenity) is constitutionally protected
speech that often has substantial social value and lacks prurient
interest. Sable, 492 U.S. at 126. Subject only to "narrow and
well-understood exceptions, [the First Amendment] does not countenance
governmental control over the content of messages expressed by private
individuals." Turner Broadcasting System v. FCC, 512 U.S. __,
__, 114 S.Ct. 2445, 2458-59 (1994)(citing R.A.V. v. St. Paul, 505 U.S.
__, __, 112 S.Ct. 2538, 2547 (1992)); Texas v. Johnson, 491 U.S. 397,
414 (1989)). The "indecency" and "patently offensive"
provisions of the CDA are unquestionably content-based bans on protected speech,
and thus are presumptively unconstitutional. Content-based regulations of
speech will be upheld only when they are justified by "compelling"
governmental interests and "narrowly tailored" to effectuate those
interests. See Turner Broadcasting, 114 S.Ct. at 2455; Simon &
Schuster, Inc. v. New York State Crimes Victims Bd., 502 U.S. 105 (1992);
Sable, 492 U.S. 126 (1989); Bolger, 463 U.S. 60 (1983). This
Court has applied strict scrutiny to content-based regulations because "[a]t
the heart of the First Amendment lies the principle that each person should
decide for him or herself the ideas and beliefs deserving of expression,
consideration, and adherence." Turner Broadcasting, 114 S.Ct. at
2458.

The application of strict scrutiny to the CDA is also fully consistent with
this Court's recent decision in Denver Area, 116 S.Ct. 2374. Five
members of the Court agreed that strict scrutiny was the appropriate test for
any cable regulation that burdened speakers' rights.17
Because it is a criminal statute and not a regulatory scheme, the CDA imposes a
more onerous burden on speech than the burden invalidated in Denver Area.
The scope of the CDA is also more expansive. Its "indecency" ban
potentially affects the speech of millions of Americans who use the Internet and
who do not have the benefit of legal advice attempting to discern the limits of
permissible expression.

The Denver Area plurality found it "unnecessary and unwise"
to settle on a single standard to resolve the case, noting the dynamic and rapid
changes taking place in telecommunications technology. Id. at 2385.
But the facts in this case establish that the CDA would effectively destroy the
innovation and growth that the Court in Denver Area cautiously sought to
protect and that have been essential to development of the Internet.18 In Judge Dalzell's words, "The CDA will, without
doubt, undermine the substantive, speech-enhancing benefits that have flowed
from the Internet." J.S. App. 133a. In short, the high First Amendment
stakes in this case demand strict judicial review.

C. The Government's Reasons For Rejecting Strict Scrutiny Are
Unpersuasive

Citing FCC v. Pacifica, 438 U.S. 726, the government argues that its
power to regulate "indecent" speech on the Internet should be as broad
as its power to regulate "indecent" radio broadcasts. Pacifica,
however, is easily distinguishable. First, it did not involve a total ban on "indecent"
speech. Second, the district court in this case specifically found that the
chances of accidentally encountering "indecent" speech on the Internet
are slight. Third, there is nothing in the record to support the government's
claim that sexual content on the Internet is "uniquely accessible to
children." Fourth, the government improperly recharacterizes Pacifica
as a case about "pervasiveness" rather than "invasiveness."
If the government could justify a content-based regulation whenever a
communications medium became "pervasive" in American homes, bans on "indecency"
in books, on the telephone, or even in normal conversation would be
constitutional. That is plainly not the law.19

The government's effort to justify a lower level of scrutiny based on Ginsberg
v. New York, 390 U.S. 629 (1968), is also misguided. The statute in Ginsberg
only prohibited materials found to be "obscene as to minors," id.
at 637, a category that is much narrower than indecency. Likewise, Ginsberg
only prohibited the direct commercial sale of magazines to minors, and did not
ban any communications between adults. Indeed, the Court in Ginsberg
specifically noted that the statute was "not invalid under our decision in
Butler" because it "does not bar the appellant from stocking
the magazines and selling them" to adults. 390 U.S. at 634-35. Finally,
the statute in Ginsberg "[did] not bar parents who so desire from
purchasing the magazines for their children," id. at 639. Under
the CDA, by contrast, even parents may not utilize the Internet to transmit
material that may be regarded as "indecent" to their children.

This Court's cases allowing cities to use zoning regulations to prevent "secondary
effects" caused by adult bookstores and theaters also fail to support a
lower level of scrutiny in this case. See, e.g., Renton v. Playtime
Theaters, 475 U.S. 41 (1986); Young v. American Mini Theaters, Inc.,
427 U.S. 50, 75 (1976)(Powell, J., concurring). Unlike the CDA, zoning
regulations impose only civil rather than criminal penalties for violation, and
apply only to commercial businesses. In addition, zoning regulations do not
(and constitutionally cannot) constitute a total ban. Schad v. Borough of
Mount Ephraim, 452 U.S. 61 (1981). Even zoning regulations are justified
only if the targeted businesses have "negative secondary effects" in
their surrounding communities. See, e.g., Renton v. Playtime Theaters,
475 U.S. 41; Young v. American Mini Theaters, Inc., 427 U.S. at 75.
Contrary to the government's argument, the impact of speech is not a "secondary"
effect. See Boos v. Barry, 485 U.S. 312 (1988)(regulation subject to
strict scrutiny if it "focus[es] only on the content of the speech and the
direct impact that speech has on its listeners"); Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134-36 (1992); Erznoznik v. City of
Jacksonville, 422 U.S. 205, 214-15 (1975); Schneider v. New Jersey,
308 U.S. 147, 162-63 (1939).

The government also suggests that the CDA is a regulation of "secondary
effects" because the "government's interest in ensuring that parents
are not deterred from allowing their children to use the Internet is directly
analogous to the concerns about crime, reduced property value, and the quality
of urban life that animated the cities in Renton and Young."
Gov't Brief at 32. This newly coined interest was never articulated by
Congress or the government below and there is absolutely no evidence in the
record to support it. See Section II.B.3, infra. Even the much
less draconian zoning regulations at issue in Renton and Young
require that the government establish a record that the adult businesses
actually cause secondary effects such as higher crime rates, injury to retail
trade, and depression of property values.20See
Renton, 475 U.S. at 48.

II. THE CDA FAILS STRICT SCRUTINY

Applying strict scrutiny, the trial court assumed that the government had a
compelling interest in preventing at least younger minors from accessing some
indecent materials. But see p.41, infra. Nevertheless, the
trial court found that the CDA failed strict scrutiny in two separate and
independent respects. First, because the CDA's defenses are completely
unavailable for the vast majority of speakers, the trial court held that the CDA
amounts to a criminal ban on constitutionally protected speech among adults.
Almost by definition, such a result is not "narrowly tailored" to the
government's purpose. Second, the trial court found that the CDA is a grossly
ineffective method of achieving the government's interest and that substantially
more effective and less restrictive methods exist.

A. The CDA Is Not Narrowly Tailored Because Its Defenses Are
Unavailable For The Vast Majority Of Speakers On The Internet

1. The CDA Operates As A Flat Ban For All Speakers Using Newsgroups,
Mail Exploders, Chat Rooms, And Commercial Online Services, And For All
Noncommercial Speakers On The World Wide Web

The trial court found that "no technology exists which allows
those posting on the category of newsgroups, mail exploder or chat rooms to
screen for age. Speakers using those forms of communication cannot control who
receives the communication." J.S. App. 74a (emphasis added)(Sloviter, J.);
id. at 136a (The defenses are "unavailable to participants in
specific forms of Internet communication")(Dalzell, J.). In addition, the
trial court found that there was no technology available that would enable age
verification by content providers on AOL, CompuServe and Prodigy. Id.
at 51a, ¶96. Thus, the CDA would require the millions of people
communicating by e-mail and mail exploders, all the people who send the 100,000
daily messages to USENET newsgroups, all the people carrying on conversations in
chat rooms, and all the speakers who provide content through the large
commercial online services, to reduce their speech to a level suitable for
minors. See pp.13-14, supra. As to this universe of speakers,
who even by themselves represent the overwhelming majority of speakers on the
Internet, the CDA clearly fails strict scrutiny as a flat ban on indecency in
violation of Butler and Sable.

The trial court also found that credit card verification is completely
unavailable for the vast number of speakers on the Web who do not charge -- and
do not wish to charge -- a fee for their information. Their finding was based
on plaintiffs' unrebutted evidence that credit card companies will not verify
cards in the absence of a commercial transaction. Steinhardt Test. Decl. ¶26;
Anker Test. Decl. ¶21; Croneberger Test. Decl. ¶27; J.A. 122-23.

To require noncommercial speakers to begin to charge for their speech in
order to verify age would violate the mission of many of the plaintiffs to
provide free information. As Kiyoshi Kuromiya testified, "[c]ost should
not be a barrier between . . . users and life-saving AIDS prevention and
treatment information." J.A. 143-44. The cost would also put most of the
plaintiffs out of business. As the trial court noted, "[i]f Critical Path
must pay a fee every time a user initially enters its site . . . it would incur
a monthly cost far beyond its modest resources." J.S. App. 54a, ¶100.
Patricia Nell Warren testified that credit card screening on the YouthArts Web
site would cost $9,000 for two days. Because YouthArts is produced entirely by
volunteer labor, and has no funding sources, the cost would be devastating.21 Warren Test. Decl. ¶¶29-38. Barry
Steinhardt testified that the ACLU would be forced to shut down its site if
required to implement credit card screening. Steinhardt Test. Decl. ¶¶29-30;
Steinhardt Testimony, Tr. Vol. III, at 173:7-21, 184:608, 185:7-17. All of
these providers thus would have to steer clear of communicating potentially
indecent speech even to adults.

2. The Burdens Of Age Verification For Content Providers On The World
Wide Web Would Drive Many Speakers From The Marketplace

Based on uncontroverted evidence in the record, the trial court also found
that the CDA would pose an unconstitutional burden on the narrow slice of
speakers on the Internet for whom the defenses are not completely unavailable.
Economic burdens on the exercise of protected speech are routinely struck down
by the courts. Thus, in Erznoznik v. City of Jacksonville, 422 U.S.
205, this Court found an unconstitutional deterrent effect on free speech where,
to avoid prosecution, theater owners were required either to "restrict
their movie offerings or [to] construct adequate protective fencing which may be
extremely expensive or even physically impracticable." Id. at 217.
In Simon & Schuster v. New York State Crime Victims Bd., this Court
stated that "[a] statute is presumptively inconsistent with the First
Amendment if it imposes a financial burden on speakers because of the content of
their speech," because such a regulation "raises the specter that the
Government may effectively drive certain ideas or viewpoints from the
marketplace." 502 U.S. at 115 & n.36.

The government acknowledges, at least, that "costs and burdens are not
irrelevant" to the constitutionality of the CDA, Gov't Brief at 39, but it
fails to apply strict scrutiny to analyze those burdens. Where a content-based
regulation imposes criminal sanctions on protected speech, the question is not
whether the burden "leaves open significant opportunities for
adult-to-adult communication," id. at 39, but whether the law uses
the least restrictive means to accomplish a compelling government interest.
Moreover, after its grudging admission that economic burden is relevant, the
government then attempts to minimize that burden by ignoring the factual
findings. But the trial court clearly found that the burden of age verification
would literally require many speakers to cease engaging in constitutionally
protected speech, regardless of the age of the reader.

For example, the government argues that speakers who post indecent material
on their Web sites "for commercial purposes can take advantage of the
statutory defenses." Id. at 34. But the government fails to
distinguish between commercial entities who actually sell information or
products over the Internet and businesses who disseminate free information about
their services or products. The Internet has allowed many small businesses to
prosper precisely because they can provide information about their services for
little or no money. The low entry barriers would be destroyed, thus silencing
many speakers and reducing the breadth of diversity and information on the
Internet, if these speakers were forced to charge for all of their speech. J.S.
App. 131a-137a (Dalzell, J.).

In addition, far from the "modest burden" that the government
suggests, Gov't Brief at 35, the trial court specifically found that the high
cost of credit card verification would impose an unconstitutional burden on many
commercial speakers. J.S. App. 53a-54a, ¶¶97-102. Thus, based on
unrebutted evidence, the trial court found that "as a practical matter,
noncommercial organizations and even many commercial organizations using the Web
would find it prohibitively expensive and burdensome to engage in the methods .
. . proposed by the government, and that even if they could attempt to age
verify, there is little assurance that they could successfully filter out
minors." Id. at 74a (Sloviter, J.); id. at 136a ("defenses
either are not available to plaintiffs here or would impose excessive costs on
them") (Dalzell, J.).

The government's argument that speakers on the Web can use adult
verification services established by third parties also ignores the actual trial
record. See p.15, supra. The government offered only hearsay
evidence about third-party verification systems on the Web. One government
witness testified that he "had no idea whether any of these adult
verification systems would be feasible for nonprofit organizations that run
largely or totally on volunteer labor." J.A. 116. The other testified
that he had simply read the Web pages for these services, but did not know how
third party verification systems actually obtained age verification. Id.
at 122-23 ("How that referral technology works, I can't say right now").
Based on this record, the trial court concluded that the government failed to
prove that third-party verification services provide an effective or practicable
way for speakers on the Web to screen for age. J.S. App. 55-56a, ¶103-07.

Even if the record supported third-party verification as an economically
viable option on the Web, the government ignores the substantial additional
noneconomic burdens of such verification. This Court affirmed as recently as
last Term that it is unconstitutional to require adults to "register"
in order to gain access to constitutionally protected speech. In Denver
Area, the Court struck down the statutory requirement that viewers provide
written notice to cable operators if they want access to certain sexually
oriented programs because the requirement "restrict[s] viewing by
subscribers who fear for their reputations should the operator, advertently or
inadvertently, disclose the list of those who wish to watch the `patently
offensive' channel." 116 S.Ct. at 2391. To require noncommercial speakers
on the Web, under threat of criminal sanctions, to force their users to register
with an unknown and possibly unreliable third party verification service is at
least as onerous a burden on First Amendment rights as the scheme this Court
found unconstitutional in Denver Area. See also Lamont v.
Postmaster General, 381 U.S. 301, 307 (1965)(finding unconstitutional a
requirement that recipients of Communist literature notify the Post Office that
they wish to receive it). A registration requirement would also prevent
Americans from exercising their First Amendment right to engage in communication
anonymously on the Internet. See J.S. App. 61a, ¶121; McIntyre
v. Ohio Elections Commission, 514 U.S.__, __, 115 S.Ct. 1511, 1524 (1995).

3. The Government May Not Require Speakers To Switch To Another Form Of
Communication

Implicitly acknowledging the factual weakness of its argument that speakers
in mail exploders, newsgroups and chat rooms can avoid prosecution through the
CDA's defenses, the government contends that these speakers can avoid criminal
difficulties by shifting their conversation "to a Web site that is screened
for age."22 Gov't Brief at 37.

This argument illustrates a fundamental misunderstanding of the nature of
these forums, which (unlike the World Wide Web) are characterized by spontaneous
interactions, much like casual conversation. The government's suggestion is
analogous to requiring a speaker chatting on a street corner, before saying a
vulgar word or discussing sexual subjects, to stop mid-sentence, leave the
corner, write down her thoughts, and have them published and sold at a bookstore
that screens out minors. Even if a speaker chose to go through this tortured
process rather than simply to remain silent, she would likely find it impossible
to comply because, as discussed above, the vast majority of content providers on
the Web also lack any method of screening for age.

More importantly, requiring speakers to switch to an alternative method of
communicating is patently unconstitutional. In any event, "one is not to
have the exercise of his liberty of expression in appropriate places abridged on
the plea that it may be exercised in some other place." Southeastern
Promotions v. Conrad, 420 U.S. 546, 556 (1975) (quoting Schneider v. New
Jersey, 308 U.S. at 163).

Not surprisingly, the government has all but abandoned its argument that
future technological developments, such as speaker-end tagging and screening,
may provide a means for speakers to comply with the Act. See Gov't
Brief at 38; see p.16, supra. As Judge Sloviter wrote, "I
can imagine few arguments less likely to persuade a court to uphold a criminal
statute than one that depends on future technology." J.S. App. 82a
(Sloviter, J.). The government's argument that tagging could constitute a "good
faith defense" failed below because "there is no such technology"
that allows speakers to tag their speech in a way that would ensure that minors
were prevented from accessing it. Id. at 79a (Sloviter, J.).
Conversely, industry continues to invent new ways to empower parents -- from the
user end -- to control Internet content, illustrating that less restrictive
alternatives to the CDA's draconian burdens are clearly available.

B. The CDA Fails Strict Scrutiny Because It Does Not Directly And
Materially Advance The Government's Asserted Interest In Protecting Minors

1. The CDA Is Ineffective

The government fails to acknowledge another independent set of facts that
were crucial to the trial court's conclusion that the CDA is not narrowly
tailored. These facts show that even if the majority of speakers on the
Internet could utilize the CDA's defenses -- and the factual record clearly
establishes that they cannot -- the CDA would still fail to achieve the
government's stated purpose of protecting minors. Because of the global nature
of the online medium, even the CDA's total ban will be ineffective at ridding
online networks of "indecent" material. Based on undisputed facts in
the record, see pp.17-18, supra, the trial court concluded:

[T]he CDA will almost certainly fail to accomplish the Government's interest
in shielding children from pornography on the Internet. Nearly half of Internet
communications originate outside the United States, and some percentage of that
figure represents pornography. Pornography from, say, Amsterdam will be no less
appealing to a child on the Internet than pornography from New York City, and
residents of Amsterdam have little incentive to comply with the CDA.

J.S. App. 145a (Dalzell, J.).

Under strict (and even intermediate) scrutiny, a law "may not be
sustained if it provides only ineffective or remote support for the government's
purpose." Central Hudson Gas & Elec. Corp. v. PSC, 447 U.S.
557, 564 (1980). The government bears the burden of showing that its scheme
will "in fact alleviate . . . the alleged harms in a direct and material
way." Turner Broadcasting, 114 S.Ct. at 2470. As Justice Scalia
wrote in Florida Star v. B.J.F., 491 U.S. 524 (1989), "a law cannot
be regarded as . . . justifying a restriction upon truthful speech, when it
leaves appreciable damage to [the government's] supposedly vital interest
unprohibited." Id. at 541-42 (Scalia, J., concurring)(holding that
Florida law prohibiting disclosure of rape victims' names in "any
instrument of mass communication" but not by other means did not directly
and substantially further the law's stated purpose).23
Because the CDA is a strikingly ineffective tool for achieving the government's
interest, it fails strict scrutiny.

2. Other, More Effective Means Exist To Empower Parents And Users

The government also defends the CDA's criminal ban on adult speech on the
grounds that there are no "equally effective" alternatives. First,
that argument misstates the relevant legal test. It is always true that only an
"absolute ban" on adult speech "can offer certain protection
against assault by a determined child." Denver Area, 116 S.Ct. at
2393. But the Court has repeatedly rejected the notion that the First Amendment
rights of adults can be sacrificed to achieve that certainty, especially when
less restrictive alternatives exist. Id. (and cases cited therein).

Second, the government's argument ignores the strong factual record
regarding the numerous alternatives available to parents, which came from the
government's own stipulations at trial. Focusing only on user-end software
programs, the government suggests that the trial court did not find them to be "currently
effective." Gov't Brief at 41. To the contrary, the trial court found
that the existing software affords parents a significant option for protecting
children. J.S. App. 146a (Dalzell, J.).

In addition, the government itself agreed that "[t]he market for this
type of software is growing, and there is increasing competition among software
providers to provide products." Id. at 35a; see also id.
at 35a-41a. Unlike the CDA, these software programs are effective at
controlling sexually oriented material originating from foreign sites. See
p.18, supra. The government's brief also completely ignores the
additional protections available through the major commercial online services --
AOL, Microsoft Network, CompuServe and Prodigy -- all of which "offer
parental control options free of charge to their members." Id. at
41a-42a; see p.18, supra. Additionally, it ignores its own
stipulations regarding the Platform for Internet Content Selection (PICS), a
coalition of major online service providers and computer companies that are
developing standards to facilitate user-based blocking. Id. at 32a-35a.24

The government is always free to further its interests by educating the
public about the "benefits and dangers of this new medium." Id.
at 146a (Dalzell, J.). As this Court noted in Denver Area, "informational
requirements" and user-based blocking are more narrowly tailored than
speaker-based schemes as a means of limiting minors' access to patently
offensive material. 116 S.Ct. at 2393. See also Title V, Subtitle C,
Pub.L.No. 104-104, §552(1), 110 Stat. 142 (encouraging the establishment of
a "technology fund" to support the development of user-based blocking
technology and public education).

3. The CDA Is Not Narrowly Tailored To Address The Government's Newly
Asserted Interest In Promoting Use Of The Internet

Without any support in the record, the government on appeal coins a
separate, independent interest in the CDA -- it suggests that "[u]nless
steps are taken to restrict the availability of such material to children,
parents . . . may be deterred from bringing the Internet into their homes at
all." Gov't Brief at 30. The government introduced no evidence at trial
to support this assertion, and the trial court was not asked to make any
findings on this point. Under strict scrutiny, this Court should consider only
those interests identified by the government below and considered by the trial
court. See Holly Farms Corp. v. NLRB, 517 U.S. __, 116 S.Ct. 1396, 1402
n.7 (1996).

Even if consideration of this newly asserted interest were proper, it is
contradicted by the record. Far from showing that parents have been deterred
from using the Internet, the facts establish that the Internet is expanding at
an exponential rate, and that the number of users -- including minors --
continues to grow. J.S. App. 13a, ¶3. Further, there is no legal support
for the government's proposition that its interest is "compelling," or
that the CDA would be a narrowly tailored means of achieving the interest.
Indeed, "indecent" materials are widely available in public libraries,
and yet, it is doubtful that the government would attempt to justify a flat ban
on indecency in libraries under the rationale that parents would otherwise
refuse to allow their children into them. As discussed above, user-based
screening technologies and public education are a far more narrowly tailored
means of addressing any parental concern over sexually oriented content on the
Internet than a criminal ban which prohibits adults from gaining access to
constitutionally protected speech.

III. THE CDA IS SUBSTANTIALLY OVERBROAD AND CANNOT BE NARROWLY
CONSTRUED

The government continues to suggest that the CDA must be upheld because, in
theory, it could be applied to some speakers without violating the Constitution.
Gov't Brief at 34. But, as the trial court held, a law must be struck down as
facially invalid "if it would `penalize a substantial amount of speech that
is constitutionally protected' . . . . even if some applications would be
`constitutionally unobjectionable.'" J.S. App 106a (Dalzell, J.)(citing
Forsyth County v. Nationalist Movement, 505 U.S. at 129). See also
Shea, 930 F.Supp. at 950 (holding that the CDA is substantially overbroad
because "the set of content providers whose speech could be
constitutionally proscribed is in fact exceeded, perhaps even overshadowed, by
the number of users whose speech is constitutionally protected").

The doctrine of substantial overbreadth arose to permit facial challenges to
laws that might have some permissible applications but that threaten a
substantial quantity of constitutionally protected speech. E.g., Brockett
v. Spokane Arcades, 472 U.S. 491, 504 (1985). This is particularly the case
where, as with the CDA, the law regulating speech is criminal in nature. See,
e.g., Houston v. Hill, 482 U.S. 451, 459 (1987).

As discussed above, the facts firmly establish that the CDA operates
unconstitutionally for the overwhelming majority of online speakers -- speakers
who communicate through mail exploders, newsgroups, chat rooms, and on the Web,
and who either have no available technology for screening minors from
their audience or who could not shoulder the economic and other unconstitutional
burdens of compliance. See Section II.A, supra. To cure this
obvious overbreadth, the government suggests that the trial court should have
upheld §223(d)'s display provision at least to the extent that it applies
to commercial Web sites. Gov't Brief at 34. But even that application
suppresses a substantial amount of protected speech. All the commercial
speakers who provide content through AOL, CompuServe, and Prodigy, and all the
commercial speakers who use the Web for communications other than the actual
sale of services or products, lack the ability to verify the age of their users.
J.S. App. 51a, ¶96.

Even if the CDA could be applied constitutionally to commercial Web sites,
which it cannot, such a narrowing construction would contradict the CDA's clear
legislative purpose. The trial court in this case and in Shea correctly
declined to perform such "radical surgery." 930 F.Supp. at 923. As
Judge Sloviter wrote: "It is clear from the face of the CDA and from its
legislative history that Congress did not intend to limit its application to
commercial purveyors of pornography." J.S. App. 75a; see also H.R.
Conf.Rep. No. 458, 104th Cong., 2d Sess. 113, 191 (1996)(Conf.Rep). Among other
things, Congress intentionally banned material under the CDA that lacks
prurient appeal and that has serious value. In addition, given the
explicit application of the statute to libraries and educational institutions,
see §§230(e) (2) and 223(f)(a), the government's suggestion
would require more than creative redrafting. The Shea court similarly
declined the invitation "to usurp Congress' legislative functions"
with an interpretation that "fl[ies] in the face of a clear congressional
intent to apply the statute's proscriptions to commercial and non-commercial
content providers alike." 930 F.Supp. at 949-50.

In a final effort to persuade the Court to ignore the well-established rules
of overbreadth and uphold the CDA as applied to commercial Web sites, the
government cites the CDA's severability clause. See Gov't Brief at
45-48. If Congress could avoid the precision the Constitution requires when
First Amendment rights are at stake simply by including a severability clause,
it could always "set a net large enough to catch all possible offenders and
leave it to the courts to step inside and say who could be rightfully detained
and who should be set at large. This would, to some extent, substitute the
Judicial for the Legislative Department of the government." United
States v. Reese, 92 U.S. 214, 221 (1875). This Court has rejected that
approach for more than a century.

The government also fails completely to address the serious overbreadth
problems posed by the CDA's broad ban of material that is constitutionally
protected for minors. "Indecency" embraces a much broader category of
speech than the "harmful to minors" standard articulated in Ginsberg.
Plaintiffs presented substantial evidence that the CDA's "indecency"
standard will bar a vast quantity of material on the Internet that is valuable
to minors, especially older adolescents. J.S. App. 71a (Sloviter, J.). See
also J.A. 140 ¶¶16-17; 142-43 ¶22.

According to a March, 1996 report of the President's Office of National AIDS
policy, one quarter of all new HIV infections in the U.S. are estimated to occur
in young people between the ages of 13 and 20. J.A. 142, ¶22. See
also U.S. Dep't of Commerce, Bureau of the Census, School Enrollment --
Social and Economic Characters of Students: October 1992, table 1 (Oct.
1993)(123,000 people under age 18 are enrolled in college, 117,000 of them as
freshmen); Alan Guttmacher Institute, Sex and America's Teenagers 19
(1994)(In 1994, more than half of teenage females and almost three quarters of
teenage males had been sexually active before their 18th birthday). In the face
of these realities about today's youth, the government is hard-pressed to
demonstrate that it has a compelling justification for barring older minors from
access to explicit safer sex information or other communications that may help
them deal with the onset of sexuality.

IV. The CDA Is Unconstitutionally Vague

Although plaintiffs recognize that some members of this Court have upheld
the "indecency" standard against vagueness challenges in other
contexts, see Denver Area, at least three distinguishing factors support
Judge Sloviter's and Judge Buckwalter's conclusion that, when applied to the
global Internet, "indecency" is hopelessly vague.

First, and crucially, "the CDA attempts to regulate protected speech
through criminal sanctions, thus implicating not only the First but also the
Fifth Amendment of our Constitution." J.S. App. 88a (Buckwalter, J.). As
this Court has stated, criminal statutes should be scrutinized with extreme care
for clarity because "`[n]o one may be required at peril of life, liberty or
property to speculate as to the meaning of penal statutes,'" and this is
particularly true of laws "`having a potentially inhibiting effect on
speech . . . .'" Hynes v. Mayor of Oradell, 425 U.S. 610, 620
(1976)(quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939), and
Smith v. California, 361 U.S. 147, 151 (1959)).

The CDA puts millions of ordinary citizens -- not media giants with staff
counsel -- at risk of criminal prosecution merely for communicating in possibly
"offensive" terms online. Online communications through newsgroups,
chat rooms, and mail exploders are often as fleeting as conversations on a
street corner. And yet the CDA requires all of these speakers to determine,
before they speak, whether their statements are "patently offensive."
Given the uncertainty of that judgment, there is no doubt that many of these
online speakers will choose to "`steer far wider of the unlawful zone' . .
. than if the boundaries of the forbidden areas were clearly marked." Grayned
v. City of Rockford, 408 U.S. 104, 109 (1972).

Second, the government's own inability to define consistently the speech
rendered criminal by the CDA dramatically illustrates just how freewheeling the
subjective, discretionary judgments of police and prosecutors under the CDA
would be.25 At trial, Special Agent Schmidt, a
federal law enforcement officer, opined that an extremely explicit safer sex
illustration of how to put a condom on an erect penis would not be subject to
prosecution because its "context" was educational, not "purely
for pleasure purposes." Schmidt Testimony, Tr. Vol. IV, at 137:5-138:19.
By contrast, the much less explicit photo of pregnant actress Demi Moore on the
cover of Vanity Fair magazine would be illegal if published on the
Internet, according to this experienced federal law enforcement officer, because
the "context" was not primarily educational, but was "fun,
basically . . . for fun more than anything else." J.A. 119. Dr. Dan
Olsen, the government's computer expert, testified that any of the "seven
dirty words" made famous by the Pacifica decision, or their
synonyms, would be covered. Id. at 127-28. Yet, the government and
some amici continue to insist that the CDA encompasses only commercial
pornography, a term without legal significance. See Gov't Brief at
34-35; Brief for Amici Enough is Enough at 7.26

Amici and the government also offer inconsistent opinions about the
meaning of the CDA's terms. For example, the conference report stated that the
CDA is intended to have "the same meaning as established in FCC v.
Pacifica and Sable Communications of California." Conf.Rep. at
188 (citations omitted). But some of these same members of Congress now assert
as amici that "[o]nline indecency was not intended and should not
be held to have the same scope as broadcast indecency," and that the two
standards "differ markedly." Brief of Amici Senators Dan
Coats, James Exon, et al., at 7 (Cong. Brief). The executive branch has not
clarified the legislative branch's confusion, and the Court is left to decide if
prior indecency cases are even relevant.

Amici and the government also offer inconsistent opinions about
whether indecency excludes material of value and whether value is to be measured
for adults or minors. In an interpretive about-face, the congressional amici
now suggest that "indecency considers serious value for adults as well as
minors," id. at 13, and "does not reach serious expression
that should be protected for adults."27Id. at 2. But the conferees explicitly rejected a "serious value
for minors" exemption when they voted against the "harmful-to-minors"
standard.28See Conf.Rep. at 189; see
also 142 Cong. Rec. H1166 (daily ed. Feb. 1, 1996)(statement of Rep.
Berman).29

Finally, the CDA is unconstitutionally vague because it fails to define the
relevant "community" that will set the standard for what is "indecent"
on the global Internet. See J.S. App. 96a-98a (Buckwalter, J.). While
the Conference Report states that the CDA is meant "to establish a uniform
national standard of content regulation," Conf.Rep. at 191, the government
below suggested that local community standards would apply. See J.S.
App. 96a-97a (Buckwalter, J.); J.A. 119. Even if one assumes that local
standards apply, speakers have no way of determining which local community
provides the relevant standard. The facts at trial showed that online
communications are accessible virtually anywhere regardless of their "community"
of origin, and online speakers have no way to determine the geographic origin of
the persons who access their speech. J.S. App. 47a-48a, ¶¶85-86. In
order to protect themselves from prosecution, then, all Internet speakers would
have to conform to the standards of the least tolerant community in the United
States -- a result that this Court explicitly rejected in Miller v.
California, 413 U.S. 15, 33 (1973)("People in different States vary in
their tastes and attitudes, and this diversity is not to be strangled by the
absolutism of imposed uniformity").

V. ALL THREE CHALLENGED PROVISIONS ARE UNCONSTITUTIONAL

In an effort to hide the unconstitutionality of all of the CDA's provisions,
the government creates a smokescreen by attempting to distinguish §223(a)(1)(B)
and §223(d)(1)(A) from §223(d)(1)(B). Gov't. Brief at 24-27. For
several reasons, this smokescreen should not divert the Court. Most
significantly, the government did not present the argument below. See
Holly Farms Corp. v. NLRB, 116 S.Ct. at 1402 n.7 (declining to entertain
argument that petitioners had failed to advance previously, because the Court "generally
do[es] not address arguments that were not the basis for the decision below")(quoting
Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. __, 116 S.Ct. 873
n.5 (1996)).

The government's effort to draw distinctions between the challenged
provisions of the CDA also lacks support under a fair reading of the statute.
Congress clearly applied the "safe harbor" defenses of §223(e)(5)
to all three provisions of the CDA.30 If
?223(a)(1)(B) and ?223(d)(1)(A) were meant to apply only to persons who
intentionally communicated indecent or patently offensive material to a
particular person they knew to be a minor, it would be nonsensical for such
speakers to be able to assert §223(e)(5)(A)'s "good faith"
defense, or §223(e)(5)(B)'s "verified credit card" defense, to
avoid prosecution. Thus, the government's interpretation is unpersuasive.

Finally, the government's attempt to define the non-display provisions
narrowly has been unclear and inconsistent. In its Jurisdictional Statement,
the government suggested for the first time that §223(a)(1)(B) "applies
only in situations in which a person transmits indecent material to another
person, knowing that person is under 18." Jurisdictional Statement at 20.
In their response, the ALA Plaintiffs interpreted the government's new
definition to mean that the provisions applied "only when the only
recipient of a communication is known to be a minor." ALA Response at 25.
But the government then flatly contradicted that understanding, stating:

[W]e do not interpret Sections 223(a)(1)(B) and 223 (d)(1)(A) as reaching
only those situations in which the sender knows that the only persons
receiving an indecent message are minors. Those Sections also apply when a
sender transmits a message to more than one recipient, knowing that at least one
of the specific persons receiving the message is a minor.

Opposition to Motion to Affirm, at 4 n.1 (second emphasis added). Under
this interpretation, the non-display provisions clearly violate Butler
because, as discussed above, adults communicating by mail exploders, newsgroups
and chat rooms have no way to prevent their messages from being distributed to
the minors in these forums while continuing to communicate with the adults.

The government's brief on the merits is more ambiguous than its brief in
opposition about when the provisions would apply. Now, the government says that
the provisions "appl[y] only in situations in which a person transmits
indecent material to another person, knowing that person is under 18."
Gov't Brief at 24. By way of supposed clarification, the government then offers
an example to support the argument that the non-display provisions do not affect
adult-to-adult communications: "[I]f an adult learned that one of the
participants in a chat room was under 18, and then sent a private indecent
communication to that individual by e-mail, the transmission provision would be
violated." Id. Their example fails to note that the non-display
provisions, under their previous interpretation, would force all of the adults
in the chat room to censor themselves until they knew with certainty that the
minor had left. The government's example also leaves totally unclear the status
of newsgroups and mail exploders. For example, if a speaker in the Safer Sex
Forum read a posting by someone who identified herself as a minor, does that
speaker have to refrain from "indecent" speech when she posts her next
message to the Forum? The government's ambiguous interpretation leaves this,
like many of the real world applications of the CDA, unclear and
unconstitutionally vague.

CONCLUSION

For the reasons stated above, the judgment of the three-judge district court
preliminarily enjoining enforcement of the CDA should be affirmed.

1. The challenged provisions of the CDA were enacted as
Title V of the Telecommunications Act of 1996, Pub.L.No. 104-104, §502, 110
Stat. 56, 133-35. The CDA will be codified at 47 U.S.C. §§223(a) to
(h), and it is those citations that plaintiffs will use throughout this brief.

4. A separate challenge to §223(d), filed in the
Southern District of New York, also resulted in a preliminary injunction from a
three-judge court on July 29, 1996. Shea v. Reno, 930 F.Supp. 916
(S.D.N.Y. 1996). The government's appeal in Shea is pending before this
Court.

5. The district court's findings appear in the record in
two separate places. A total of 123 findings are set forth in the district
court opinion itself. J.S. App. 12a-61a, ¶¶1-123. The stipulated
description of the plaintiffs and their speech was incorporated by reference in
the district court opinion but not set out in full. Id. at 12a n.9.
Those paragraphs appear as an appendix to the Motion to Affirm in Reno v.
ACLU, and are cited hereafter with the prefix "M.A."

6. Section 223(a)(1)(B) also prohibits the transmission of "obscene"
communications on the Internet. This case does not challenge the application of
existing obscenity, child pornography, or solicitation laws to the Internet.

7. The government argues that "indecency" and "patent
offensiveness" have the same meaning. Brief for Appellants (Gov't Brief)
at 10. While the statute itself provides no support for the government's
position, see J.S. App. 64a-65a (Sloviter, J.), id. at 91-93a
(Buckwalter, J.), plaintiffs will use the term "indecency" in this
brief to refer to both §223(a) and §223(d).

8. On appeal, the government asserts that §223(a)(1)(B)
and §223(d)(1) (A) apply to the same types of communication and differ only
in the type of technology that they cover. See Gov't Brief at 24-25 &
n.6.

9. Plaintiffs also challenged and the district court struck
down §§223(a) (2) and (d)(2), which make it a crime to "knowingly
permit" use of a telecommunications facility for expression prohibited by §§223(a)(1)(B)
or 223(d)(1).

10. For a more thorough description of the plaintiffs,
see M.A. 1a-63a, ¶¶70-356.

11. The government has consistently refused to say that
plaintiffs' speech is not covered by the CDA, and has never challenged the
standing of any of the plaintiffs. J.S. App. 12a n.9; see also id. at
107a (Dalzell, J.).

13. While there was no dispute during the preliminary
injunction proceedings that some sexually oriented material is available on the
Internet, id. at 74a, ¶¶82-84, it is not "the primary
type of content on this new medium." Id. at ¶83.

14. See Shea, 930 F.Supp. at 941.

15. Furthermore, the court found that, even if tagging
were technologically possible, the task of determining which material to tag
indecent "would be extremely burdensome for organizations that provide
large amounts of material." Id. at 57a, ¶110. For example, "[t]he
Carnegie Library would be required to hire numerous additional employees to
review its online files at an extremely high cost to its limited budget."
Id.

16. The trial court noted that "[t]he government's
position on the applicable standard has been less than pellucid but . . . it now
appears to have conceded that it has the burden of proof to show both a
compelling interest and that the statute regulates least restrictively."
J.S. App. 67a. See also Shea, 930 F.Supp. at 939 ("At oral
argument, the Government's counsel conceded that strict scrutiny analysis is
appropriate . . . .").

17. See id. at 2407, 2419 (Kennedy and Ginsberg,
JJ., concurring in part and dissenting in part); id. at 2424, 2429
(Thomas, J., Rehnquist, C.J., and Scalia, J., concurring in part and dissenting
in part).

18. "[I]f the medium is reconstituted to accommodate
the Act, it will cease to possess those unique characteristics which are
responsible for its growth and adoption as a communications medium by
individuals the world over and which represent its potential as a revolution in
democratic communication." Hoffman Test. Decl. at ¶139.

19. In addition, the primary justification for
intermediate scrutiny in the broadcast cases was spectrum scarcity. By
contrast, the Internet has virtually limitless communications potential. See
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); Turner
Broadcasting, 114 S.Ct. at 2456-57; Sable, 492 U.S. at 127-28, Bolger,
462 U.S. at 74 (1983).

20. Even if the government had presented actual evidence
-- which it did not -- that some parents were deterred from using the Internet
because of the presence of sexual material, this would certainly not justify a
content-based, criminal ban on protected speech. If it did, controversial
material currently available in libraries and bookstores could be banned simply
because parents were fearful of its effects on their children -- which would
amount to a permanent "fearful parents" veto on protected speech.

21. Ms. Warren testified that electronic magazines for
young people have proliferated precisely because the cost of production is much
lower, and the distribution much simpler, than for print media. Warren Test.
Decl. ¶36; Warren Testimony, Tr. Vol. I, at 189:1-16.

22. There is no evidence in the record to support the
government's suggestion that "chat rooms, newsgroups, and mailing lists can
be established on a Web site." Gov't Brief at 37.

23. See also Denver Area, 116 S.Ct. at 2416 ("Partial
service of a compelling interest is not narrow tailoring")(Kennedy &
Ginsburg, JJ., concurring in part and dissenting in part); Smith v. Daily
Mail Publishing Co., 443 U.S. 97, 104-05 (1979)(invalidating law making it a
crime for newspapers, but not electronic media, to publish the names of juvenile
offenders); Bolger, 463 U.S. at 73 (restriction that "provides only
the most limited incremental support for the interest asserted" cannot
survive scrutiny under commercial speech standards).

24. Some amici suggest that teenagers are more
adept with computers than adults, Brief of Amici Morality in Media at
23; Brief of Amici Enough is Enough at 20, although no evidence on this
issue was presented to the trial court. This suggestion, even if true, would
only be relevant if parents could not turn on blocking software or if minors
could disable it. But the record showed that parental control options are no
more difficult to enable than a bank ATM card, and are just as difficult to
disable. Duvall Test. Decl. at 6-8, ¶¶13-16. As this Court has said, "[n]o
provision . . . short of an absolute ban, can offer certain protection against
assault by a determined child. We have not, however, generally allowed this
fact alone to justify `reduc[ing] the adult population . . . to . . . only what
is fit for children.'" Denver Area, 116 S.Ct. at 2393 (citations
omitted).

25. The defenses, far from resolving the CDA's vagueness,
fail to provide speakers with any clear guidelines about how to avoid
prosecution. See Shea, 930 F.Supp. at 943-44, in which John C. Keeney,
Acting Assistant Attorney General of the Criminal Division of the Department of
Justice, advised in a letter to the court that tagging would be "substantial
evidence" in support of a "good faith" defense. As Judge Dalzell
noted, "[i]t is . . . an unanswered question whether the Keeney letter
would eliminate any of the CDA's chill, since the Government acknowledged that
the letter would not prohibit a United States Attorney from taking a contrary
position in a particular prosecution." J.S. App. 133a-134a, n.20.

26. The government did not seriously contest the standing
of the plaintiffs in this case. See n.11, supra. Even more
dramatically, the government did not contest standing in Shea, which
involved a single magazine article using strong language as part of a political
attack on the CDA itself. 930 F.Supp. at 923.

27. Amici's suggestion that "indecency"
excludes material with serious value is also contradicted by the case law. For
example, the satiric comic monologue at issue in Pacifica could hardly
be said to lack any artistic or political value. Pacifica, 438
U.S. at 751; see also id. at 741 n.16 (scenes from Lady Chatterley's
Lover, though constitutionally protected, would raise serious "indecency"
concerns if broadcast); United States v. Evergreen Media Corp., 832
F.Supp. 1183 (N.D.Ill. 1993) (broadcast talk shows containing sexual innuendo);
KSD-FM, Notice of Apparent Liability, 6 FCC Rcd. 3689 (1990)(news story
about a highly publicized alleged rape).

28. The government's and amici's reliance on the
phrase "in context" exacerbates rather than resolves the vagueness of
the CDA. See Gov't Brief at 43-44; Cong. Brief at 14. A speaker on the
World Wide Web has no control over the "context" in which his speech
is viewed; the material is simultaneously presented in potentially thousands of
different "contexts" through the ad hoc linking feature of the
Web. See J.S. App. 117a n.11 (Dalzell, J.).

29. In response to the government's argument that it would
not prosecute "works of serious literary or artistic merit," Judge
Sloviter wrote: "[It] would require a broad trust indeed from a generation
of judges not far removed from the attacks on James Joyce's Ulysses as
obscene . . . . The bottom line is that the First Amendment should not be
interpreted to require us to entrust the protection it affords to the judgment
of prosecutors." J.S. App. 82a-83a.